Jharkhand High Court
Topal Munda vs The State Of Bihar (Now Jharkhand) on 12 September, 2022
Criminal Appeal (D.B.) No. 106 of 1995 (R)
Against the judgment of conviction dated 29.07.1995 and order of
sentence dated 31.07.1995 passed by Shri Bharat Prasad Sharma, learned
Judicial Commissioner, Ranchi in S. T. No. 340 of 1988.
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Topal Munda ... ... Appellant
Versus
The State of Bihar (now Jharkhand) ... ... Respondent
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For the Appellant : Mr. Vikash Kumar, Amicus Curiae
For the Respondent : Mr. Saket Kumar, A.P.P.
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Present:
HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
HON'BLE MR. JUSTICE AMBUJ NATH
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C.A.V. on - 18.08.2022 Pronounced on - 12.09.2022
Heard Mr. Vikash Kumar, learned Amicus Curiae for the
appellant and Mr. Saket Kumar, learned A.P.P. for the State.
2. This appeal is directed against the judgment of conviction
dated 29.07.1995 and order of sentence dated 31.07.1995 passed by Shri
Bharat Prasad Sharma, learned Judicial Commissioner, Ranchi in S. T.
No. 340 of 1988 whereby and whereunder the appellants have been
convicted for the offence under Section 302 of Indian Penal Code and has
been sentenced to undergo rigorous imprisonment for life.
3. During the pendency of the appeal, the appellant no. 2 -
Bobby Mundain had died and therefore the appeal had abated as against
the appellant no. 2 vide order dated 10.04.2019. This appeal is therefore
now restricted to the appellant no. 1 (hereinafter referred to as the
'appellant') - Topal Munda.
4. The fard beyan of Herambi Mundain was recorded on
18.09.1987 in which she has stated that for some days, she and her
brother-in-law were not keeping well. At about 8:00 P.M., her husband
called Mulla Pahan for treatment. Mulla Pahan had started sprinkling
turmeric, salt and rice and some rice accidently fell in the house of Topal
Munda. At this, the wife of Topal Munda started shouting that by doing
such act Mulla Pahan was projecting her as a witch. In course of
quarrel, her husband came out and assaulted Topal Munda. The wife of
Topal Munda - Bobby Mundain had pressed the testicles of the husband
of the informant and Topal Munda had brought a knife and gave a blow
on his chest as well as on his hand. When the informant raised an alarm,
her brother-in-law Lakhan Munda came out by which time the accused
persons fled away. The husband of the informant died at the spot.
Based on the aforesaid allegations, Murhu P. S. Case No. 45 of 1987
was instituted against Topal Munda, Bobby Mundain and Mulla Pahan
for the offences punishable under Sections 302/34 of Indian Penal Code.
Charge was framed under Section 302 I.P.C. which was read over and
explained to them in Hindi to which they pleaded not guilty and claimed
to be tried.
5. The prosecution has examined as many as 10 witnesses in
support of its case.
P.W. 1 - Panda Lohar has deposed that about one and half years
back, he had seen the dead body of Gahnu Munda in front of the house
of Topal Munda. He has identified his signature in the inquest report
which has been marked as Exhibit 1. He has proved his signature in the
seizure list with respect to seizure of blood stained earth which has been
marked as Exhibit 1/1.
In cross-examination, he has deposed that the distance between the
house of Gahnu Munda and Topal Munda is about 15 yards.
P.W. 2 - Buka Mahto has proved his signature on the inquest
report, which has been marked as Exhibit 1/2. He has also proved his
signature in the seizure list of blood stained earth which has been
marked as Exhibit 1/3.
P.W. 3 - Lakhi Mundain has deposed that Gahnu Munda was
murdered about one year back. It was night and she was sick. When she
heard the alarm raised by Gahnu, she came out from the courtyard and
saw Bobby Mundain pulling the testicles of Gahnu Munda and Topal
Munda had struck on the chest of Gahnu Munda with a knife, as a result
of which Gahnu Munda fell down and died.
In cross-examination, she has stated that Gahnu and Topal are her
brothers-in-law. She had seen Gahnu being assaulted. Topal Munda had
assaulted Gahnu once. It was dark, but she had not come out with light.
She thereafter stated that a Dhibri was burning. She has further deposed
that after the incident Bobby Mundain and Topal Munda fled away.
P.W. 4 - Herambi Mundain is the informant who has deposed that
on the date of occurrence, she was inside her house while her husband
Gahnu Munda and accused Topal were outside. Bobby Mundain was
pulling the testicles of her husband and Topal had stabbed her husband
with a knife and she was also pushed by Topal and thereafter Topal and
Bobby had fled away. Her husband had fell down and died. She had
given a statement to the police. She has proved her thumb impression in
the fard beyan which has marked as Exhibit 2.
In cross-examination, she has deposed that she came outside on
hearing abuses. Both the brothers had a quarrel with respect to partition
of the field. The incident was seen by her sister-in-law - Lakhi Mundain.
When she came out, Lakhi Mundain had also come out. Both she and the
accused had a common courtyard.
P.W. 5 - Lakhna Munda has deposed that the incident is of a year
back; when she had heard shouting and on coming out from her house
had seen Bobby Mundain and Topal fleeing away. Topal had a knife in
his possession. The wife of Gahnu had disclosed that Topal had
murdered her husband.
In cross-examination, she has deposed that the knife in possession
of Topal had blood on it. She had seen two wounds on the body of
Gahnu. She came to know about the incident from Herambi Mundain
after one hour. She has stated that there was no Dhibri in the courtyard.
P.W. 6 - Surja Oraya, P.W. 7 - Birsa Munda and P.W. 8 - Rama
Munda have been tendered by the prosecution.
P.W. 9 - Dr. Samuel Minz was posted as a Medical Officer in Sub-
Divisional Hospital, Khunti and on 18.09.1987, he had conducted autopsy
on the dead body of Gahnu Munda and had found the following ante
mortem injuries:
(i) "Stabbed would 2" x ½" x 5" deep placed on slightly left
side of sternum on the lower part of the front of chest. On
exploration, the left lung lower was found punctured with full of
blood, blood stained fluid and blood clots in the lungs cavity.
(ii) Incised wound on middle of left hand measuring 3" x 2" x
¼" on the back side of hand."
He has proved the post mortem report which has been marked as
Exhibit 3.
P.W. 10 - Bhola Das has proved the formal FIR which has been
marked as Exhibit 4.
6. The statement of the accused was recorded under Section
313 Cr.P.C. in which he has denied to have been involved in the offence.
7. The defence has examined one witness namely, Charku
Singh (D.W. 1) who has stated that on the date of occurrence, Topal and
his wife were at his place from 5:00 P.M. in the evening till the morning
of the next day as both of them had come to attend a dance programme
which had been held in his house.
In cross-examination, he has stated that both the accused are his
employees.
7. Mr. Vikash Kumar, learned Amicus Curiae has submitted
that P.W. 3 and P.W. 4 claimed themselves to be eye-witnesses, but their
evidences are full of contradictions and infirmities. He has submitted
that the evidence of P.W. 3 reveals that it was dark and identification of
the appellant was made in the light of a Dhibri. The place of occurrence
could not be established as the Investigating Officer had not been
examined and the knife said to have been used in the commission of
murder was also not recovered and such circumstances have caused
prejudice to the defence. Alternatively, it has been submitted that there
was no pre-meditated act on the part of the appellant and only on
account of a quarrel, the assault has been committed which would at best
attract an offence punishable under Section 304 Part II of Indian Penal
Code.
8. Mr. Saket Kumar, learned A.P.P. has submitted that there
was a previous enmity between the appellant and the deceased and
repeated blows by the appellant with a knife upon the deceased wipes
out the contention of the defence that the act of the accused had occurred
at the spur of the moment.
9. We have given our anxious consideration to the submissions
advanced by the learned counsel for the respective parties and have also
perused the Lower Court Records.
10. The incident had started with a quarrel between Mulla
Pahan and the wife of Topal which had cast aspersions upon Mulla
Pahan that he was trying to propagate that she is a witch. The others
including the husband of the informant and the appellant joined in the
quarrel and which culminated in the wife of the appellant pressing the
testicles of the husband of the informant and the appellant giving knife
blows resulting in his death.
P.W. 4 is the informant and she is consistent in her evidence with
respect to the manner of assault. In her cross-examination, she has stated
about a dispute between the appellant and the deceased regarding
creation of a division in their field. She has also stated that P.W. 3 had
witnessed the incident and the evidence of P.W. 3 corroborates the
evidence of P.W. 4.
P.W. 3 has also stated about seeing the occurrence in the light of
Dhibri which was burning. P.W. 5, though is not an eye-witness, but her
evidence is also significant to the extent that she had seen the appellant
fleeing away with a knife. The place of occurrence has been established
by virtue of the evidences of the witnesses as the place is in front of the
house of the appellant and therefore the non-examination of the
Investigating Officer has not caused prejudice to the defence so far as
establishing the place of occurrence is concerned. It has been well
established by the prosecution that it was the appellant who had given
knife blows on the deceased which resulted in his instant death.
11. We have to now consider as to whether act of the appellant
is punishable under Section 304 Part II I.P.C. or under Section 302 I.P.C.
12. We must bear in mind that when the incident had started,
the appellant had come out from his house. Mulla Pahan was called by
the husband of the informant to practice exorcism as the informant and
her brother-in-law were not keeping well. Some of the materials used by
the exorcist fell in the house of the appellant which infuriated his wife
and thereafter, the act of assault has been committed.
13. In this part of the country, especially in remote villages,
exorcism, black magic and witchcraft were prevalent in a large scale
from times immemorial. With the advent of technology and by creating
awareness amongst the people, this practice though not fully obliterated
but has witnessed a decline. The incident is of the year 1987 and any sort
of insinuation of practicing witchcraft would entail serious consequence
and repercussions from the society. Though, P.W. 4 has stated that
Mulla Pahan was not called to her place, but in her fard beyan she has
specifically stated about Mulla Pahan being present whose act of
sprinkling rice, turmeric and salt triggered the incident. The
Investigating Officer could have been confronted with the evidence of
P.W. 4, but such non-examination seems to have prejudiced the defence.
14. The incident do seem to have occurred at the spur of the
moment without any premeditation. The deceased was the own brother
of the appellant. Only one blow with a knife was given on the vital part
of the body of the deceased which is corroborated by the medical report.
The learned trial court has failed to consider the evidence of the
witnesses as well as the medical report while holding the appellant guilty
for the offence under Section 302 I.P.C., though as has been noted above
at best the appellant can be convicted for the offence under Section 304
Part II I.P.C.
15. We therefore, modify the conviction of the appellant to one
under Section 304 Part II of Indian Penal Code and sentence him to
undergo rigorous imprisonment for 10 years.
Since the appellant is on bail, he is directed to surrender forthwith
before the learned trial court to serve out his sentence.
(Rongon Mukhopadhyay, J.)
(Ambuj Nath, J.)
Jharkhand High Court at Ranchi
The 12th day of September, 2022
R.Shekhar/NAFR/Cp.3
